LAW FOR ALL

Section 5 of the Limitation Act, 1963 for condonation of delay of 2500 days in filing the petition to set aside the ex parte decree. - When a person pleads that summons were not served, the burden is on the opposite party to prove that the summons were served. When the petitioner has taken the specific plea that summons were not served, the lower Court ought to have perused the record and rendered a finding based on the acknowledgment of the suit summons. The lower Court cannot be solely guided by the docket proceedings without verifying the record. Moreover, by placing the burden on the petitioner to prove that suit summons were not served, it has committed a serious illegality. For the above-mentioned reasons, the order of the Court below which borders on perversity cannot be sustained, and the same is accordingly set aside. The case is remitted to the lower Court for disposing of I.A.No.733 of 2004 afresh by verifying the record relating to service of summons by holding a fresh enquiry in the light of the observations made hereinbefore. The civil revision petition is accordingly allowed.